Nwafor v Minister of Home Affairs and Others (SCA) (unreported case no 1363/2019, 12-5-2021) (Mbha JA (Zondi and Mbatha JJA, Gorven and Poyo-Dlwati AJJA concurring))

In the Nwafor case, the applicant, Anthony Okey Nwafor, approached the Supreme Court of Appeal (SCA) to seek leave to appeal a judgment by Potterill J, that was handed down in the Gauteng Division of the High Court in Pretoria on 27 June 2019. Potterill J dismissed the applicant’s application for an order to review and set aside the Minister of Home Affairs (first respondent) and the Director General of Home Affairs’ (second respondent) decision to deprive the applicant and his minor children of their South African citizenship.

This was after the Department of Home Affairs (the Department), sent a letter on 13 April 2016, addressed to the applicant and his family, advising that the Minister of Home Affairs intended to deprive him and his minor children of their South African citizenship. The minister’s intended action was based on the following grounds:

• The applicant had obtained the permanent residence permit by means of a false representation by concealing the material fact that he was still married to Mrs Nwafor, who he married in Nigeria on 1 March 2003, when purported to marry Ms Vilankulo in South Africa on 25 April 2003, and while presenting himself as a bachelor at the time.
• That the applicant’s marriage to Ms Vilankulo on 25 April 2003 took place when Ms Vilankulo was still a minor without requisite permission from her guardian.
• That the permanent residence permit was issued to the applicant in conflict with the applicable law in that it was issued on 22 January 2004, in terms of the Aliens Control Act 96 of 1991 but subsequent to its repeal by the Immigration Act 13 of 2002 (the Immigration Act), on 12 March 2003.

In the same letter the applicant was informed that in terms of s 3 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), he was entitled, within ten calendar days from the date of receipt of the letter, to make representations to the minister setting out reasons why the minister should not proceed with the intended deprivation of citizenship. Importantly, the applicant could approach the High Court in terms of s 25 of the South African Citizenship Act 88 of 1995, to review the decision made by the minister.

On 3 May 2016, representation was made in a letter written on the applicant’s behalf through his legal practitioners, in response to the Department’s letter of 13 April 2016. The salient points made in the letter, which was addressed to the minister, and copied to the Director General of the Department, were the following:

• It was denied that the applicant obtained his permanent residence permit by means of false representation by concealing, his prior marriage to Ms Nwafor in Nigeria on 1 March 2003, and that he had presented himself as a ‘bachelor’ when he married Ms Vilankulo in South Africa on 25 April 2003. An explanation proffered was shortly after, ‘a church blessing’ between the applicant and Ms Nwafor, a serious material issue occurred, which affected the marital relationship resulting in the immediate dissolution of the said marriage.
• Regarding the allegation that Ms Vilankulo was a minor at the time of her marriage to the applicant, it was averred that Ms Vilankulo was born on 26 August 1984, she was over the age of 18 years at the time. Reliance was placed on, inter alia, s 24(1) of the Marriage Act 25 of 1961 (the Marriage Act) that Ms Vilankulo’s mother had signed as a witness to the marriage, which constituted as parental ‘consent’ as is required by the Marriage Act.
• Lastly, regarding the contention that the permanent residence permit in the applicant’s possession was issued contrary to the applicable law, it was contended that the applicant had followed all required procedures as expected of him, at the time of his application, for permanent residence and citizenship. Furthermore, the applicant had all the necessary documentation as proof that he had followed all the correct procedures to procure the said permanent residence permit.
• The letter concluded by stating that the applicant had shown that there was no basis to warrant the deprivation of his South African citizenship in terms of s 8(1)(a) and (b) of the South African Citizenship Act.

The Supreme Court of Appeal (SCA) said the applicant’s bases or grounds for the application, which are delineated as issues for determination in the applicant’s heads of argument, were –

• whether the applicant should be granted leave to adduce the further evidence contained in a supplementary affidavit that was filed on 30 June 2017;
• whether the applicant should be granted leave to introduce new points of law pertaining to the following issues, namely –

– the absence of delegation of authority granted to the decision-maker;

– the collective deprivation of citizenship of the minor children and their mother; and

– the abandonment issue.

The SCA added that the intended application to adduce further evidence in a supplementary affidavit was not pursued. The court said the decision was well taken considering that the court a quo quite rightly disregarded the supplementary affidavit on the basis that no leave to file same was sought and obtained from the court a quo, a fact rightly conceded by the applicant in the papers. The SCA pointed out that although the court a quo quite rightly disregarded the supplementary affidavit, as it was filed without leave of the court, the court still considered the point raised that the minister could not have delegated the power to deprive a citizen to the Director General and that the deprivation is thus ultra vires the law. The court a quo rightly rejected this contention as bad in law based on the provisions of s 22 of the South African Citizenship Act.

The SCA said the issue took on a new form before it, namely, that the respondents did not follow due legal process in revoking the applicant’s citizenship. The SCA added that this was because the notice of deprivation was signed by the second respondent who at the time was not in possession of the delegation of authority in terms of s 7A(8) of the Public Service Act 103 of 1994 requiring, inter alia, that a delegation by the minister to the Director General had to be in writing. The SCA said that this point cannot succeed and must suffer the same fate as the one raised earlier before Potterill J. The SCA added that it is a completely new issue not hitherto raised before either in the paper or before the court a quo.

The SCA pointed out that the delegation by the minister accords full square with the clear provision of s 22 in the South Africa Citizenship Act. The SCA said as the first respondent may under s 22 of the South African Citizenship Act delegate any power, conferred to him or her under that Act, this includes the power to deprive citizenship in terms of s 8 of this Act. The SCA said the applicant’s attempt to place reliance on the decision in Apleni v President of the Republic of South Africa and Another [2018] 1 All SA 728 (GP), is misconceived. That the facts in this case were clearly distinguishable as the aspect of delegation was squarely raised in the papers unlike in casu, where the issue only rears its head on appeal.

The SCA said the other grounds the applicant raised relates to the alleged collective deprivation of citizenship of the applicant’s minor children and his wife. The SCA pointed out that it was averred that the matter was of public interest and that issues of the rights of women and children should be severed from their dependence on the citizenship of their husband and father. The SCA said that reliance was sought to be placed on s 10 of the South African Citizenship Act, which provides ‘[w]henever the responsible parent of a minor has in terms of the provisions of section 6 or 8 ceased to be a South African citizen, the Minister may, with due regard to the provisions of the Children’s Act [38 of 2005], order that such minor, if he or she was born outside the Republic and is under the age of 18 years, shall cease to be a South African citizen’.

The SCA added that the respondents failed to put any facts to show that the minister considered certain factors in making the requisite determination, flowing from the need to protect the interests of children as required in s 7 of the Children’s Act. The SCA noted that it was then averred that the children’s case ought to have been dealt with separately and not as though the children were mere appendages to the applicant. The SCA pointed out that similarly, the applicant’s Nigerian wife, so it was submitted, was an independent bearer of rights meaning that the department was obliged to conduct a separate investigation when revoking her citizenship. The SCA said this point regarding the collective deprivation of citizenship cannot succeed.

The SCA pointed out with regard to the submission by the applicant that in matters involving status, abandonment is generally not allowed is misplaced and cannot succeed. The SCA added that the attempt by the applicant to draw in aid the decision in Ex parte Taljaard 1975 (3) SA 106 (O) does not assist as the applicant in that case had sought to abandon a final sequestration order during appeal. The SCA said that the final analysis, r 41(2) of the Uniform Rules of Court was totally irrelevant and not applicable in this matter. The SCA added that the point raised was clearly based on a wrong legal premise and must accordingly fail.

The SCA said the complaint by the applicant that the deprivation of citizenship was arbitrary and unlawful and was done without being afforded an opportunity to be heard or that he was not afforded sufficient and reasonable time to make representation, must fail. The SCA pointed out that an analysis of the Department’s letter dated 13 April 2016, addressed to the applicant and his family shows that it complies with s 3(2) of PAJA in that the applicant was given:

‘(i) adequate notice of the nature and purpose of the proposed administrative action;

(ii) a reasonable opportunity to make representations;

(iii) a clear statement of the administrative action;

(iv) adequate notice of any right of review or internal appeal, where applicable; and

(v) adequate notice of the right to request reasons in terms of section 5.’

The SCA said that considering what it had stated above, it found that the applicant fell short of the test set out in s 17(1)(a) of the Superior Courts Act 10 of 2013. The SCA pointed out that the application must, therefore, fail.

The SCA made the following order:

‘The application is dismissed with costs, such costs to include the costs of two counsel’.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2021 (July) DR 33.